Dieter Alfred Schewe v. Jacob Beck and Clinton County, Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0332
Filed October 5, 2022

DIETER ALFRED SCHEWE,
Plaintiff-Appellant,

vs.

JACOB BECK and CLINTON COUNTY, IOWA,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Mark R. Lawson,

Judge.

Plaintiff appeals the denial of his motions for new trial or additur and

disputes the taxation of deposition costs. REVERSED AND REMANDED.

Marc S. Harding of Harding Law Office, Des Moines, for appellant.

Corinne R. Butkowski of Lynch Dallas, P.C., Cedar Rapids, for appellees.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

Dieter Schewe alleged injuries from a motor vehicle accident caused by

Jacob Beck, a Clinton County employee and the driver of the county’s road

grader.1 But a jury determined that both Schewe and Beck were equally at fault.

For damages, the jury awarded $1000 to Schewe for medical expenses, $3000 for

past pain and suffering, and $1000 for property damage. Unhappy with the

damage award, Schewe moved for a new trial or, in the alternative, additur. The

district court denied the motions for new trial or additur but took up the Defendants’

request to tax the cost of a deposition and photographs against Schewe, which it

did. Now Schewe appeals, arguing his post-trial motions should have been

granted and the district court’s assessment of certain costs against him was wrong.

We agree with Schewe’s position on the post-trial ruling and taxation of costs

issues.

We dive into our reasoning behind the resolution of this dispute below.

Post-Trial Motions.

Both parties assert the standard of review involving a district court’s denial

of a motion for new trial or request for additur is for abuse of discretion. We agree,

as a new-trial motion based on a discretionary ground is reviewed for an abuse of

discretion. See Loehr v. Mettille, 806 N.W.2d 270, 277 (Iowa 2011). In ruling on

the motion for new trial, the district court noted confusion over the grounds Schewe

asserted and addressed its reasoning under Iowa Rule of Civil Procedure

1Schewe brought his action against Beck, individually, and against the county
under a vicarious liability theory. For simplicity we refer to Jacob Beck and Clinton
County collectively as the Defendants.
3

1.1004(6), whether “the verdict . . . is not sustained by sufficient evidence, or is

contrary to law.” On appeal, Schewe advances that same rule, arguing the verdict

is inadequate and bears no relationship to the loss suffered. If it is shown damages

are inadequate, refusal to grant either an additur or a new trial is an abuse of

discretion. Kerndt v. Rolling Hills Nat’l Bank, 558 N.W.2d 410, 417 (Iowa 1997).

“An abuse of discretion consists of a ruling which rests upon clearly untenable or

unreasonable grounds.” Lawson v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010).

“In ruling upon motions for new trial, the district court has a broad but not unlimited

discretion in determining whether the verdict effectuates substantial justice

between the parties.” Iowa R. App. P. 6.904(3)(c). And we are “slower to interfere

with the grant of a new trial than with its denial.” Iowa R. App. P. 6.904(3)(d).

Motion for New Trial.

Arguing the uncontroverted evidence of medical expenses did not match

the damages award, Schewe moved for a new trial or for additur. Schewe claims

the billings presented at trial established medical expenses of $10,269: $200 for

Andover Ambulance services, $9949 for evaluation at Mercy Medical Center, and

$120 for treatment at Genesis Hospital where Schewe’s passenger was admitted

and where Schewe fainted after arriving.2 The Defendants objected that the bills

were not causally related to the motor vehicle accident, but the billing records and

some treatment records were admitted into evidence. There was little discussion

2 On the billing exhibits submitted, the Andover Ambulance charge was $300,
reduced by a $98 insurance payment and a $2 adjustment to get to the billed
amount of $200. The Mercy Medical billing showed “charges” and “total payments”
of $9949 with a zero balance at the end, but the document also reflected several
Medicare and insurance adjustments totaling $14,829 that were not explained at
trial.
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over the billings other than statements that the charges represented only treatment

from the day of the collision. Despite evidence of the amount of each billing, the

jury awarded Schewe $1000 for past medical expenses. Pointing to Iowa Rule of

Civil Procedure 1.1004(5), which allows a new trial if the amount of recovery is too

large or too small, Schewe maintains the verdict was not “sustained by sufficient

evidence.”

The Defendants contend the “extent, causation, and severity of [Schewe’s]

injuries were contested through testimony and evidence including the paid medical

expenses.”3 On this subject the district court found:

The evidence concerning medical expenses is not as uncontroverted
as [Schewe] asserts. [Schewe’s] attorney asked for an award of
$10,000 for past medical expenses in closing argument. This is less
than the amount he now claims the jury should have awarded.
[Schewe] was not questioned extensively at trial about the medical
bills. He did not have a recollection of paying any medical bills. He
was surprised when his attorney asked him if he knew he would be
required to reimburse medical expenses which had been paid by
third parties and denied any knowledge of this obligation.

After dissecting the medical billing exhibits, which showed payments for the

majority of the bills by the providers and only small balances due, the district court

expanded upon the record by noting: “Since the issue of reimbursement was murky

at best, a reasonable factfinder could conclude [Schewe] incurred [out]-of-pocket

medical expenses in the amount of $320. The jury awarded $1000. This award is

supported by sufficient evidence. [Schewe’s] substantial rights were not materially

affected.” But this ruling does not take into account the law of the case as

3 During their closing, the Defendants argued: “Damages. I don’t think you’ll get
to number six, but if you do, you’ll have those past medical expenses. You can
add them up yourself. It only comes up to about $5,900 based on what was paid
in those medical bills you have.”
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established by the instructions given to the jury. See State v. Taggart, 430 N.W.2d

423, 425 (Iowa 1988) (noting that an instruction given to the jury without objection

becomes the law of the case); see also Froman v. Perrin, 213 N.W.2d 684, 689

(Iowa 1973) (“If no objection is taken, the instruction, right or wrong, becomes the

law of the case.”). Here, over no objection, the jury was instructed not to consider

any reimbursement issues:

You have heard evidence that the plaintiff’s health insurer has
made certain payments of the plaintiff’s medical bills and that the
plaintiff’s health insurer may be entitled to reimbursement of those
payments. The Court will decide the extent to which reimbursement
will be required after you return your verdict. You will not decide that
issue. Render your verdict without regard to that issue.

As such, under the district court’s analysis that the $1000 award for medical

expenses was sufficient because it related to the reimbursement testimony, we

cannot find support for a fair verdict because the jurors were instructed to look at

the bills without consideration of any payment or reimbursement. Thus, we find

the district court abused its discretion in ruling that the reimbursement question

supported a verdict of $1000.

Even so, “[t]here is a distinction between proof of the fact that damages

have been sustained and proof of the amount of those damages.” Olson v.

Nieman’s Ltd., 579 N.W.2d 299, 309 (Iowa 1998). And, Schewe “bears the burden

of establishing a claim for damages with some reasonable certainty and for

demonstrating a rational basis for determining their amount.” Hammes v. JCLB

Props., LLC, 764 N.W.2d 552, 558 (Iowa Ct. App. 2008). The test is whether the

verdict fairly and reasonably compensates the injury the party sustained. Blume

v. Auer, 576 N.W.2d 122, 125 (Iowa Ct. App. 1997). And the “itemized damages
6

should be logically and legally consistent.” Id. With this record it is difficult to

rationalize the $1000 medical damages verdict as being anything other than

arbitrary.

After eliminating the district court rationale for the medical damages verdict,

we look to the Defendants’ analysis of the result but we reject their similar

arguments over whether the bills were paid and needed to be reimbursed. On

their side, the Defendants also point to discrepancies in the medical treatment

records and assert that the cause and extent of the injuries was disputed at trial.

But the Defendants offer no explanation for the specific award of $1000 based

upon what bills were actually provided. And while much was made of Schewe’s

reports of limited pain in the records, it is clear from the paid charges noted on the

billings that medical expense was incurred for a medical evaluation of Schewe

following the motor vehicle accident. See Pexa v. Auto Owners Ins. Co., 686

N.W.2d 150, 156 (Iowa 2004) (“The reasonable value of medical services can be

shown by evidence of the amount paid for such services or through the testimony

of a qualified expert witness.”). The treatment records show that Schewe reported

at the onset right-side chest bruising from his seatbelt, right upper leg pain, and

left wrist pain, all minimal.4 Schewe testified the medical providers x-rayed him,

drew blood, and “checked everything out” during the visit. And the treatment

records made a part of the evidence confirm Schewe was evaluated to rule out

injuries from the motor vehicle accident. Those records showed the medical

4 The jury did award Schewe damages for minor pain and suffering.
7

providers ran a chest x-ray, did a blood draw, evaluated vital signs, and did an

otherwise necessary urgent care examination.

From those billings submitted, it is arbitrary to carve out a $1000 expense

as it relates to no actual charge in the record. As we have held, “each itemization

is a special jury finding that must be supported by the evidence. If such finding is

not supported by the evidence, the plaintiff is entitled to a new trial.” Matthess v.

State Farm Mut. Auto. Ins. Co., 521 N.W.2d 699, 703 (Iowa 1994). True, juries

are the fact-finders and are free to accept or reject evidence presented during a

trial. See Blume, 576 N.W.2d at 125. But, verdicts that cannot “be reconciled in

any reasonable manner consistent with the evidence and its fair inferences, and in

light of the instructions of the court” must be set aside. Hoffman v. Nat’l Med.

Enter., Inc., 442 N.W.2d 123, 126–27 (Iowa 1989). Here, based upon the

treatment records and the billings, there was unrebutted evidence that Schewe

went to the emergency room by ambulance and was checked for any injuries.

While there was certainly a dispute about the fault and whether the collision caused

any long-standing injury, no one disputed that Schewe required a medical

evaluation.

Motion for Additur.

After the trial, Schewe also moved, in the alternative, for a conditional new

trial that would allow the Defendants “to agree to additur to the verdict of $9,269.00

within the time allowed by Iowa [Rule of Civil Procedure] 1.1010.”5 Under the same

5 Iowa Rule of Civil Procedure 1.1010 (1) provides, “The district court may permit
a party to avoid a new trial under rule 1.1003 or 1.1004 by agreeing to such terms
or conditions as it may impose, which shall then be shown of record and a
judgment entered accordingly.” Rule 1.1010(2) states:
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reasoning for the denial of the motion for new trial, the district court denied the

request for additur. Now on appeal, Schewe requests an additur raising the award

of damages to $10,269. We have no evidence to support that the fainting spell

was a result of the motor vehicle collision in this record, but the ambulance

expense and the urgent care evaluation relate directly to the accident. And

although the evaluation did not establish any significant injury or treatment, the

cause of the visit related to a potential for injury from the collision. No one

presented testimony in this record that the evaluation tests were for some other

purpose or treatment for any specific condition; instead there was only suggestion

that the results of the tests might reveal other nonrelated conditions. Here the

medical expense for the evaluation was susceptible to precise calculation such

that additur is appropriate. See Kerndt, 558 N.W.2d at 417 (finding no rationale

for the awarded damages based upon the exhibits submitted at trial where the

actual calculations of damages were established). The records included itemized

charges associated with the ambulance ride and the various tests that were

If the term or condition imposed is a choice between
consenting to a reduced, modified or increased judgment amount or
proceeding to a new trial, regardless of whether imposed by the
district court or an appellate court, then the choice shall be made by
filing a written consent to the reduced, modified or increased
judgment with the clerk of the district court in which the case was
tried within the following times:
a. If imposed by the district court, on or before seven days
before the date when an appeal must be taken pursuant to Iowa R.
App. P. 6.101.
b. If imposed by an appellate court, on or before 30 days after
the date the procedendo is filed with the district court.
If such a written consent is not filed within these time periods,
then the new trial imposed as the other choice shall be deemed
ordered automatically.
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conducted to rule out injury, and no one rebutted any specific charge to show it

was not related to that medical effort.

We conclude the district court should have denied the motion for new trial

as to the medical expense damages only on the condition the Defendants accept

an additur raising the award of damages to $10,149 (ambulance bill plus the Mercy

Medical Center bill). Accordingly we reverse and remand to address the medical

expense damage issue. The election to accept the additur should be made within

thirty days of the filing of procedendo.

Assessment of Deposition Costs.

After the jury determined the parties to be equally at fault, the Defendants

moved to tax the deposition transcript expense of $371.25 as costs, asserting they

used the transcript testimony four times to impeach Schewe.6 This was the charge

for the full transcript of the deposition of Schewe. Because the Defendants filed

an offer to confess judgment for $10,000 under Iowa Code section 677.7 (2019),7

they requested that the full cost of the deposition used to impeach Schewe at trial

be taxed against him. See Iowa Code § 677.10 (“If the plaintiff fails to obtain

judgment for more than was offered by the defendant, the plaintiff cannot recover

costs, but shall pay the defendant’s costs from the time of the offer.”). Citing Iowa

6 From our review of the record, it appears the Defendants quoted lines of
testimony directly from the deposition twice, although they did discuss it during
impeachment four times. At best, pages 30 and 31 of the deposition transcript
were specifically referenced.
7 Section 677.7 provides:

The defendant in an action for the recovery of money only
may, at any time after service of notice and before the trial, serve
upon the plaintiff or the plaintiff’s attorney an offer in writing to allow
judgment to be taken against the defendant for a specified sum with
costs.
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Code section 625.6,8 the Defendants also requested reimbursement of the $5 cost

of reproducing several color photographs used at trial. Recognizing that only part

of the deposition transcript was used to impeach, the district court ruled that only

$100 of the deposition transcript cost and the $5 expense for copying photographs

would be taxed as costs.

But Schewe requests that we apply the applicable rule and case law to

correct the error made by the district court on this issue. Our rules offer this

guidance when taxing deposition costs: “The judgment shall award against the

losing party only such portion of these costs as were necessarily incurred for

testimony offered and admitted upon the trial.” Iowa R. Civ. P. 1.716. The district

court uses a two-step decision-making process as a prerequisite for allowance of

the deposition expense. EnviroGas, L.P. v. Cedar Rapids/Linn Cnty. Solid Waste

Agency, 641 N.W.2d 776, 786 (Iowa 2002). First the court makes a factual finding

regarding whether the deposition was “introduced into evidence in whole or in part

at trial” and second, if it was, the court must then exercise its discretion to decide

if all or some portion of the cost was “necessarily incurred.” Id. (citation omitted).

Under this two-step process we apply a two-tiered standard of review. See Sec.

State Bank v. Ziegeldorf, 554 N.W.2d 884, 893 (Iowa 1996) (adopting two

standards of review where court was required to make a factual finding as to

statutory prerequisite for allowance of attorney fees and then exercise discretion

as to amount of fees to allow).

8 Section 625.6 allows reimbursement to the successful party for “necessary fees
paid” to “procur[e] copies of deeds, bonds, wills, or other records filed as a part of
the testimony.”
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A review of our case law also informs our decision. Starting with Cline v.

Richardson, 526 N.W.2d 166, 169 (Iowa Ct. App. 1994), a panel of this court held

that it was an abuse of discretion for the district court to tax the cost of the

deposition where the transcript was used in only one instance to impeach and the

deposition transcript was not offered or admitted into evidence. In two of our

cases, we followed that reasoning as well to determine the trial court abused its

discretion. See Carson v. Rothfolk, No. 12-1021, 2013 WL 4009790, at *7 (Iowa

Ct. App. Aug. 7, 2013) (“[W]e find first that the use of a deposition during cross-

examination of a witness is not ‘introduced into evidence’ as contemplated by the

rule and is therefore not a cost subject to being assessed.”); Doty v. Olson, No.

09-1852, 2010 WL 5050565, at *5 (Iowa Ct. App. Dec. 8, 2010) (“A successful

party may not recover deposition costs under Rule 1.716 by ‘mere oral reference’

to a witness’s deposition during trial.”). Because the deposition transcript here was

not offered or admitted at trial and was used only to impeach on a limited basis,

we find the trial court abused its discretion and reverse the taxation of the

deposition cost.

As for the copy expense for photographic exhibits, we find that cost is not a

fee paid to procure copies of “deeds, bonds, wills, or other records.” Iowa Code

§ 625.6 (allowing for reimbursement to the successful party for “necessary fees

paid” to “procur[e] copies of deeds, bonds, wills, or other records filed as a part of

the testimony”). We reverse the taxation of the $5 copy expense as well.

Conclusion.

We reverse and remand on the issue of the medical expense damages and

allow for a conditional new trial if additur is not accepted. We also reverse on the
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assessment of the $100 deposition fee and $5 reproduction fee that were taxed as

costs to Schewe.

REVERSED AND REMANDED.